Complainant

Respondent

Parties

Oonagh  Cody

Boots Retail Ireland Limited

Representatives

Karen Wall, Mandate Trade Union

Grace O'Malley, Ibec

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00067171-001

05/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00067171-002

05/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00067172-001

05/11/2024

The Complainant contends that she worked on the 1st May 2024 but received no payment for this day.  She submits that the Respondent owes her €125.55 for working the 1st May 2024 (CA-00067171-001).  The Complainant also contends that she is entitled to company sick pay, but that the Respondent failed to pay her when she was absent on sick leave (CA-00067171-002).  The Complainant submits she was discriminated on the ground of age in relation to the company sick pay scheme and victimised because she is in receipt of the state pension (CA-00067172-001).

The Complainant worked for the Respondent from the 26th May 1999 until her retirement on the 9th April 2025 at age 69 years.  Prior to her retirement she was contracted to work one day a week (7.5 hours) for which she was paid €125.55 (€16.74 per hour).  The Complainant worked alternative Tuesdays and Wednesdays.  Some months she worked 5 days per month and other months she worked 4 days per month.  Her pay was averaged over 12-months.  

The Complainant worked on the 1st May 2024.  On the 7th May 2024 the Complainant was absent from work owing to an injury and remained on sick leave that month.  She received her payslip at the end of the month.  As the Complainant is in receipt of the state pension, she is not entitled to state illness benefit.  Although the Complainant had worked the 1st May, and she had an entitlement to 3.2 days sick pay for the year, her pay slip that month showed a minus figure of -€79.77.  On querying the issue, she was informed that an amount equivalent to state illness benefit had been deducted from her wages even though she had no entitlement to state illness benefit, and as a result her pay slip was showing a minus figure. 

An explanation was provided by Ms Maher to the Complainant which outlined that the company sick pay scheme ‘tops up’ the amount of any illness benefit a person is entitled to receive from the state to the level of the employee’s basic pay.  Ms Maher also explained to the Complainant that, as set out in the company sick pay policy, where an employee is not entitled to illness benefit, the company does not compensate the employee for this.  Therefore, for every employee, the applicable rate of illness benefit is automatically deducted from company sick pay.  The Complainant received no top up payment once the illness benefit rate of €232 per week was deducted.  Ms Maher explained to the Complainant that the illness benefit rate of €232 per week was the wrong amount applied in relation to the Complainant.  Instead, a reduced rate of €104.10 per week should have been deducted given she worked part-time.  Ms Maher told the Complainant that she adjusted the deduction to the correct part-time illness benefit rate.  Ms Maher also said that the one day waiting period (as per the terms of the company sick pay scheme) was incorrectly applied and as a result a greater number of social welfare deductions were also made.  Ms Maher informed the Complainant that she would receive a payment of €173.50 in the December 2024 pay run.  However, the Complainant did not receive this sum, and she was informed that the overpayment going into the next payroll would be a minus figure of -€52.38.

Following questions from the Adjudication Officer in relation to the figures presented by both parties (and an acknowledgement to both sides that the manner in which the payslips and pay was calculated was far from straightforward), Ms Wall submitted, on behalf of the Complainant, that the Complainant physically worked a total of 142.5 hours in 2024 but was only paid for 132.90 hours.  Therefore, she is owed 9.6 hours pay (9.6 x €16.74 = €160.70) [CA-00067171-001].  Further, the Complainant was entitled to 3.2 days sick pay, commencing from the 13th May (allowing for the mandatory one day waiting period).  It was acknowledged that, as per the terms of the sick pay scheme, the Respondent can deduct the part-time illness benefit rate of €104.10 per week from the Complainant’s weekly wages of €125.55.  Therefore, the Complainant is entitled to 3.2 days sick pay at €21.45 and accordingly she is owed a total amount of €68.64 in sick pay [CA-00067171-002].   

It was submitted by the Complainant that the sick pay scheme is discriminatory on grounds of age as it provides for the deduction of illness benefit, but an employee in receipt of the state pension is not entitled to illness benefit.  Ms Wall submitted that the Respondent’s refusal to amend the sick pay scheme (which was agreed between the Respondent and Union 18 years ago) to consider those who work beyond retirement age discriminates against those employees working beyond retirement age, and that other companies have amended their sick pay schemes but the Respondent refuses to engage in discussions to do so.  Ms Wall confirmed the Complainant was giving no evidence in relation to the victimisation claim, and that this element of the complaint under CA-00067172-001 was withdrawn.    

Ms Maher outlined that the sick pay scheme was agreed in 2007.  It provides for one waiting day.  It further provides that the company will only top up illness benefit.  For a person working full time, an illness benefit rate of €232 applied.  As the Complainant worked part-time hours the applicable rate was €104.10.  In relation to the Complainant, the Respondent was only obliged to pay her €21.45 on a day she qualified for sick pay.   Ms Maher outlined that the Complainant was entitled to 3.2 days sick pay.  The Respondent paid the Complainant €81.96 sick pay in June 2024 as evidenced on the June 2024 payslip, and therefore there is no sick pay owing to her [CA-00067171-002].

It was accepted by Ms Maher during the hearing that 9.6 hours pay at the hourly rate of €16.74 (a total of €160.70) is properly owing to the Complainant and that this sum is outstanding [CA-00067171-001].  It was accepted by the Complainant that 9.6 hours was the correct amount due and not 10.75 hours as outlined in the Complainant’s written submission.  Ms Maher told the hearing that this amount would be paid to the Complainant after the hearing.   

Ms O’Malley submitted on behalf of the Respondent that the Complainant did not name a comparator in relation to her discrimination claim, and that the Complainant had failed to discharge the burden on her to establish a prima facie claim.  The Respondent is willing to engage in discussions regarding the sick pay scheme and has reached out to the union in that regard.  The Respondent does not decide the state illness benefit rules and how they apply to persons in receipt of state pension.  The sick pay scheme applies equally to any person who does not qualify for illness benefit.  The Respondent has not discriminated against the Complainant on the age ground or any other ground.

Relevant Law:

Payment of Wages Act, 1991 (as amended) (“The 1991 Act”)

Section 1(1) of the 1991 Act provides that wages “ . . . in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise . . . .”

Section 5(1) of the 1991 Act provides that an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or the employee has given his prior consent in writing to it. 

Section 5(6) of the 1991 Act provides:

“(a) Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act) ,  . . . then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6(1) of the 1991 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

In Marek Balans v. Tesco Ireland Limited [2020] IEHC 55, the High Court held that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

The Employment Equality Acts, 1998 – 2015 (“the Acts”)

The Acts promote equality in the workplace and provides protection against discrimination, harassment, and victimisation. The Acts prohibit discrimination on nine grounds, including age.  Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on any of the nine grounds.  The employee must demonstrate that they have been treated less favourably than a comparator. 

Discrimination:

Section 6(1) of the Acts defines discrimination for the purposes of the Acts as follows:

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are . . . (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”) . . . . ”

Comparators:

Section 28 of the Acts provides:

“(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows: . . . (e) in relation to the age ground, C and D are of different ages . . . .” 

The Labour Court has previously held that when no similar employee is available for comparison, it may allow the employee to rely on a hypothetical comparator.  Where a comparator is referenced, a successful claim will require demonstration of discrimination on the ground/s alleged.

Burden of Proof:

Section 85A(1) of the Acts provides:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary . . . .”

The Labour Court in Southern Health Board v. Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Findings:

CA-00067171-001 – Complaint under the Payment of Wages Act, 1991

The Complainant contends she is owed 9.6 hours pay.  It was accepted by the Respondent during the hearing that the Complainant is owed wages for 9.6 hours and that this sum had not been paid to the Complainant as of the date of the hearing.  I find that 9.6 hours pay, at an hourly rate of €16.74, is properly payable to the Complainant (a total amount of €160.74), and the failure to pay wages of €160.74 when it fell due constitutes an unlawful deduction within the meaning of the 1991 Act.  Accordingly, I find this complaint to be well-founded.  I note that on the date of the hearing, this amount remains outstanding and therefore I direct the Respondent to pay the Complainant €160.74.

CA-00067171-002 – Complaint under the Payment of Wages Act, 1991

The Complainant contends she is owed 3.2 days sick pay.  She accepts the Respondent’s submission that her entitlement is limited to topping up the applicable state illness benefit of €104.10.  The Complainant accepted at the hearing that an amount of €68.64 sick pay was owing to her.  However, she rejected the Respondent’s submission that this sum was paid to her in June 2024.  The Adjudication Officer requested that a copy of the June 2024 payslip be submitted to the WRC after the hearing as it was not clear to the hearing based on the documents opened to the hearing that the Complainant had in fact received this sum.  The June 2024 payslip and a supplementary submission was duly submitted to the WRC by the Respondent.  In this supplementary submission, the Respondent accepted that the Complainant was due 3.2 days sick pay at the top up rate of €21.45.  The Respondent further submitted: “[o]n reviewing Ms Cody’s payslips, due to how the absence was recorded, Ms Cody did not receive this top up.  The Respondent apologises for this error.  As such the sum of €68.74 gross will be processed in the June 2025 payroll”.  The Respondent outlined its calculations as follows: weekly rate 7.5 hours x hourly rate of €16.74 = €125.55 – less social welfare for average earnings of €150 or less of €104.10 = top up rate of €21.45 x 3.2 days = €68.74.

The Complainant contends she is owed €68.64 sick pay.  This was accepted by the Respondent in the supplementary submission provided to the WRC by the Respondent following the hearing (although I note a typo in the Respondent’s supplementary submission - the calculation (above) should read €68.64 and not €68.74).  I find that 3.2 days sick pay at the top up rate of €21.45 is properly payable to the Complainant (a total amount of €68.64), and the failure to pay sick pay of €68.64 when it fell due constitutes an unlawful deduction within the meaning of the 1991 Act.  Accordingly, I find this complaint to be well-founded.  I note that on the date of the hearing and on the date of the provision of the supplementary submission, sick pay of €68.64 remains outstanding and therefore  I direct the Respondent to pay the Complainant €68.64.

CA-00067172 – Complaint under the Employment Equality Acts, 1998 - 2015

It is the Complainant’s case that because of her age she is not entitled to state illness benefit and therefore the Respondent’s practice of deducting illness benefit (or conversely only topping up the amount of illness benefit she would have been entitled to had she not been in receipt of state pension) is discriminatory on grounds of age.  The Respondent contends that the Complainant has not identified a comparator; has not discharged the evidential burden on her; and, without prejudice to the foregoing, has failed to demonstrate that she has been treated less favourably on the ground of age than another employee is, has been or would be treated in a comparable situation. 

The Complainant must establish both the primary facts upon which she relies and that those facts are of sufficient significance to raise an inference of discrimination.  It was common case: (i) the Complainant is not entitled to illness benefit because she is in receipt of state pension due to her age and (ii) the sick pay scheme does not compensate any employee if they are not entitled to state illness benefit.  I am satisfied the facts relied upon by the Complainant are of sufficient significance to support the inference contended for by the Complainant, and therefore the burden of proof shifts to the Respondent to show that no unlawful discrimination on the ground of age took place.

It was common case that the company sick pay scheme provides only for the topping up of the applicable state illness benefit, and that the scheme provides that if an employee is not entitled to illness benefit, the company does not compensate the employee for this.  Therefore, the question I must consider is whether the company practice of topping up illness benefit and not compensating an employee where they are not entitled to illness benefit because of their age (as in the case of the Complainant) is discriminatory on the ground of age. 

It was common case that the amount of and eligibility criteria for illness benefit is determined by the Department of Social Protection and not the Respondent.  I note a person may not qualify for illness benefit due to their age, employment status, insufficient PRSI contributions, or if they are disqualified for non-compliance with the rules of the scheme for example.  I am satisfied that the Respondent’s practice of only topping up illness benefit applies equally to all employees regardless of their age.  I am further satisfied that the Respondent’s practice of not compensating an employee for non-entitlement to state illness benefit in the event of absence similarly applies to all employees, regardless of the reason for their non-entitlement to illness benefit.  I am further satisfied that the Complainant, like any other employee, qualifies for company sick pay (as a top up payment) when she is absent and notwithstanding that she is in receipt of state pension while absent.

I find the Respondent did not discriminate against the Complainant on the ground of age contrary to the Employment Equality Acts, 1998-2015.

CA-00067171 - 001

I decide this complaint under the Payment of Wages Act, 1991 is well-founded, and I direct the Respondent to pay the Complainant €160.74.

CA-00067171 - 002

I decide this complaint under the Payment of Wages Act, 1991 is well-founded, and I direct the Respondent to pay the Complainant €68.64.

CA-00067172 - 001

I decide this complaint of discrimination on the ground of age under the Employment Equality Acts, 1998-2015 is not well-founded.

Unlawful deduction. Discrimination. Age.